Schulich School of Law, Dalhousie University Schulich Law Scholars Articles, Book Chapters, & Blogs Faculty Scholarship 1990 Nomos and Thanatos (Part B): Feminism as Jurisgenerative Transformation, or Resistance Through Partial Incorporation? Part II Richard F. Devlin FRSC Follow this and additional works at: https://digitalcommons.schulichlaw.dal.ca/scholarly_works Part of the Law and Gender Commons, and the Law and Philosophy Commons Devlin: Transformation or Resistance 167 Feminism may pose the opportunity to conceptualize and nourish another, emancipatory side of power, a side that expands our horizons rather than curtails them, a side that nurtures our personhood rather than stultifies it, a side that fosters care for our inherent human dignity rather than inflaming· the festering sores of "anxious privitism"216 and possessive individualism. 217 Feminism, rather than working within and thereby reproducing the androcentric interpretation/imposition of power, may be able to challenge the very meaning of power itself. Difference,with its substantive emphasis on the ethic of care, may fit with this alternative conception of power. However, because of her unidimensional conception of power, MacKinnon understands "difference" as "powerlessness" rather than "power to".218 Although MacKinnon is correct to point out that, historically, the awareness of difference has operated to women's disadvantage, and that women's caring role has been part of their strategy forsurvival, we must be careful not to make this into an essentialist thesis that difference = domination/subordination. Such an approach ignores the factor of human - particularly male - agency in making this correlation. But, again, what has been socially constructed by males is capable of being ( de)reconstructed by females and profeminist males. Difference can be interpreted, codified and understood as being affirmative; the important question is how? MacKinnon, therefore,may have failed to challenge male supremacism at its core. Rather than attempting to reconstruct power, she takes the male interpretation to be the sole interpretation, thereby working within the paradigm, rather than transformingit. This may also lead her into the dangers of ahistoricism in that her conception of the totalizing dualistic hierarchy of male/female prohibits her from accounting for those women, herself included,219 who have managed to resist the pervasiveness of patriarchal ideology and who have voiced their opposition. Moreover, historically, some women have had access to power in both its androcentric and expansionist manifestations. Examples can be found not only in law, but also in politics and literature.220 There is a herstory that cannot be reduced to subordina- 216. Gabel, Book Review, R. Dworkin, "Taking Rights Seriously" (1978), 91 Harvard L.Rev. 302. 217. C.B. MacPherson, The Political Theoryof Possessive Individualism(1962). 218. The closest she comes to discussing "power to" is her assertions that "female power" is a "contradiction in terms", a "misnomer". Feminism Unmodifiedat 53. 219. Thus, for example, at one point she posits that she is "existentially amazed" to be speaking at all.Feminism Unmodifiedat 163. 220. Tori! Moi, supra note 2 at 64; Duchen, supra note 81 at 92.Michelle Zimbalist Rosaldo, "Women, Culture and Society: A Theoretical Overview" supra note 4 at 17-42. In politics,see 168 The Dalhousie Law Journal tion.221 MacKinnon's conception of power is too all encompassing, it is an understanding which is underdeveloped for the explanatory burden it is required to carry. Ultimately, I fear that MacKinnon comes perilously close to reductionism by developing a unidimensional explanation that is monoliihic, thereby denying differences, important differences, not only Dorothy Smith, "The Problem of the Main Business", discussing the power of Chilean women, in the faceof circumstances significantly harsher than those which face many North American women; ElizabethJaneway, Powers of the Weak (1980). Ann Duffy,"Power" supra note 210 discussing the powerfulinfluence of a variety of middle and upperclass Canadian Women in the Canadian culture and polity. Seealso Susan Ostrander in the American context, "Upper­ class Women: Class Consciousnessas Conduct and Meaning" in Power Structure Research 73- 96 (G.W. Domhoffed. 1980). Seealso N.C. Oye, As Sisters and As Equals (1980); J. White, Women and Unions (1980); R. Cavendish, Women on the Line (1982); J. Wajeman, Women in Control· Dilemmas of a Workers Co-operative (1983) M. Ryan, "The Power of Women's Networks: A Case Study of Female Moral Reform in Antebellum America" (1979), 5 Feminist Studies 66. Veronica Strong-Boag, The Parliamentof Women: The National Council of Women of Canada 1893- 1929 (1976); M. Stacey and M. Price, Women, Power and Politics (1981); M. Young and P. Willmolt, Family and Kinship in East London (1962); B. Campbell, Wigam Pier Revisited (1984); C. Smith Rosenberg, "The Female World of Love and Ritual: Relations Between Women in Nineteenth Century America" (1975), l Signs 1; E. Dubois et al., "Politics and Culture in Women's History: A Symposium" (1980), 6 Feminist Studies26. Again, if we look beyondour own cultures there is some evidence· to indicatethat women do exercise power. For overviews see Joyce Neilsen, "From Corrective to Creative Progress in Sex Stratification: Sociological and Anthropoligical Contributions" (1979), 2 International Journal of Women's Studies 324; Sharon Tiffany,"Women, Power and the Anthropology of Politics: A Review" (1979), 2 International Journal of Women's Studies 430. V. Mahler, "Work, Consumption and Authority within the Household: A MorrocanCase" in OfMarriage and the Market 69 (K. Young ed. 1981); A. Hamilton, "A Complex Strategical Situation: Gender and Power in Aboriginal Australia", in Australian Women: Feminist Perspectives (N. Grieve and P. Grimshaw eds. 1981). Black herstory has been particularly important in illuminating the narrowness of"women as only victim" analysis. See Audre Lorde,"An Open Letter to Mary Daly" in This BridgeCalled Me Back, supra note 69, at 94; Alice Walker, In Searchof Our Mothers Gardens: Womanist Prose( 1983); Carol Stack, All Our Kin: Strategies for Survival in Black Communities (1975); Angela Davis, Women, Race and Class(1981). In the area of legal relations, Shelley Gavigan suggests that there exists an as yet unrecounted history of women's powerful resistance to masculinist law, "Bringing on the Menses: The Criminal Liability of Women and the Therapeutic Exception in Canadian Abortion Law" (1986), 1 Can. J.W.L. 279. 221. MacKinnon would possibly portray this discussion as an example of the male response in which "the successof our (women's) survival is used to delegitimize what we have survived to say, our critique", Feminism Unmodified at 131. Such a criticism would miss the point of my suggestion forI am not claiming that things aren't bad for women, rather it is that the oppression is not total. Moreover, MacKinnon's reliance on survival is an inadequate foundation upon which to priorize her interpretation and critique . other women who disagreewith MacKinnon are also survivors. To disagreeis not necessarilyto delegitimize. I think that elements of a better approach are contained, in an earlier claim by MacKinnon that, ". feminism relies on the ultimate possibility of resistence, even though the feminist analysis of the crushing totality of subordination has difficulty accounting for it." "Toward Feminist Jurisprudence" (1982), 34 Stanford L.Rev. 703, 720. Although she tends to still overplay the domination element, there is an awareness that women have a power to resist. Devlin: Transformation or Resistance 169 inter-gender but also intra-gender. It renders "her impervious to the nuances, inconsistencies and ambiguities"222 of social interaction. If we accept MacKinnon's "metaphysically nearly perfect" approach, how do we explain what Adrienne Rich has described as "the extraordinary will­ to-survive in millions of obscure women",223 that the gynocide has not already taken place, that the Atwoodian dystopia224 is not where we are today. If women have been the victims of such universal and unrelenting domination and misogyny (which is a different claim from pervasive and systemic inequality) then how has womankind survived and, more importantly, how is feminism now able to articulate its critique of male hegemony. How does feminism know? I suggest that, at least in part, this is due to a nascent counterparadigm of power, a resilient, supportive, encouraging, expansive and deviationist subpower that has allowed the community of women· to continue despite an extremely adverse political ecology.225 Finally, not only does her approach run the risk of falsifying the past, more depressing still, it may also foreclose a feminist future. Her approach is pervaded by a politically paralysing negativity, that denies the emancipatory potential of difference, by claiming that we cannot know what women would say or write or do because the foot is on the throat.226 Though metaphorically powerful, and marvellously capturing, 222. Tori! Moi, supra note 2 at 30. 223. On Lies, Secrets and Silence 255 (1979). See also Kalpana Ram, "Sexual Violence in India" (1982), RefractoryGirl 2. 224. Margaret Atwood,The Handmaid'sTale (1985). 225. A cautious parallel may be drawn here between the position of women in patriarchal societyand black slaves in antebellum America. Fora long time many scholars emphasized the repression and damage caused to black